Question: My community has a project that in our pruzbul (a mechanism to obviate shemitat kesafim), one excludes a loan given through a gemach, upon which we fulfill the mitzvah of shemitat kesafim (voiding loans at the end of shemitah). Why can’t the pruzbul apply to everything, and I still fulfill the mitzvah by voluntarily waiving my right to payment of the loan of my choice?

Answer: Various contemporary “projects” tap into the concept of shemitat kesafim, allowing the forgiving of certain loans. The systems can have two focuses:

1. Helping borrowers with debt burden, as halacha did before pruzbul was instituted.

2. Fulfilling the mitzvah of shemitat kesafim. We applaud no. one without halachic analysis; your question focuses on no. two.

Two main questions affect your question: A. What does shemitat kesafim entail? B. How does pruzbul effectively neutralize shemitat kesafim?

Most Rishonim (see Mordechai, Gittin 380; Minchat Asher, Devarim 19) view shemitat kesafim as automatically erasing debt, after which the lender must not ask for a debt that no longer exists. The Yereim (164) champions another approach — the debt still exists, but the Torah demands the lender to waive payment. The Rosh (Gittin 4:20) posits that during shemitah, the debt exists, but the lender may not demand it; at the end of the year, the debt is canceled. The various approaches are tested by the Gemara (Gittin 37b) discussing the proper exchange between borrower and lender without a pruzbul. The borrower offers payment; the lender proclaims “meshamet ani” (applied:, “I accept the cancellation of my rights to loan payment”); the borrower says “even so [I want to pay] … it is my [money], but I am giving it to you as a present.”

The Gemara (Gittin 36b) posits that in our days, the Torah law of shemitat kesafim does not apply, but the Rabbis instituted it as a “remembrance of the Mikdash.” When Hillel saw this caused people to refuse to lend money, he instituted pruzbul to provide a mechanism for ensured payment despite shemitah.

Some say that pruzbul is a way to “hand over one’s documents to beit din,” which obviates even Torah-level shemitat kesafim (see Tosafot, Gittin 36a). This is because, on some level, it makes the debt be considered collected already (see Ran, Gittin 19b of Rif’s pages) and/or because the lender is not collecting himself, but beit din is in charge of it (Rambam, Shemitah 9:15). Some see the pruzbul as a direct creation of the Rabbis based on their control over the Jewish community’s finances (see Gittin ibid.; Yalkut Biurim ad loc. (176)). Others see the pruzbul as an alternative means of remembering the laws of shemitat kesafim (Hitorerut Teshuva I:151).

Our analysis is general, and we cannot — in this forum — answer your question according to every posek. However, according to most opinions, the Torah-level mitzvah of shemitat kesafim entails following the rules whereby shemitat kesafim makes it forbidden to extract payment, which does not happen when there is a pruzbul. Therefore, one who voluntarily agrees not to receive the money that he may collect while doing an act of kindness, is not following the mechanism of the mitzvah of sk. Your idea that a pruzbul does not prevent fulfilling shemitat kesafim, is feasible according to the Yereim —if the mitzvah is always to not demand an existing loan, then the fact that there is a pruzbul might not make a difference. On the other hand, the mitzvah according to the Yereim is still talking about a case where it is forbidden to demand payment, whereas after pruzbul, it is permitted. It is also difficult to predict how the Rabbinic nature of shemitat kesafim in our times impacts the mitzvah mechanism (Minchat Asher, Shviit, 64).

The Ben Ish Chai (I, Ki Tavo 26) suggests making at least a small loan after making his pruzbul to apply shemitat kesafim to. The Teshuvot V’Hanhagot (VI:280) disapproves of making Hillel’s pruzbul system look regrettable, but, in discussion of how one could apply shemitat kesafim, also assumes it would have to be with a loan to which pruzbul does not apply. Rav Asher Weiss (ibid.) did not see the halachic sense in these efforts, especially if the “loan” (a misnomer) was never intended to be collected. If, though, one wants to show his excitement about the mitzvah of shemitat kesafim, excluding it from the pruzbul makes halachic sense.

This column is written by Rabbi Daniel Mann on behalf of the Eretz Hemdah Institute in Jerusalem, which trains dayanim and has many projects on behalf of Klal Yisrael, including its “Ask the Rabbi” service in conjunction with the OU. Rabbi Mann is a Dayan at Eretz Hemdah, a senior member of the Ask the Rabbi project, and author of its Living the Halachic Process series. He is also a Ram at Yeshiva University’s Gruss Kollel in Israel.

By Rabbi Daniel Mann/
Eretz Hemdah